Then Came You: How Clear Is Pennsylvania Law on Surrogacy?

I enjoy reading books by other Philadelphians, particularly when they include references to places I know. So, I decided to read Jennifer Weiner’s Then Came You, which tells the stories of four women: a young Princeton grad, a high school-educated married woman in Phoenixville, a grown “trust-fund baby” in New York, and a sympathetic “gold digger” with a checkered past.

Jennifer Weiner is an established author, so book reviews abound (just Google it). I’ll limit my review of the book to a few comments. The four women tell their stories in first person past tense, and their observations and tones are highly similar. I would have preferred a third person omniscient narrator with a single voice, giving the author an opportunity to differentiate the unique personalities of the four women through dialogue. Otherwise, the story is appealing, the writing is good, it and strikes many of the same themes as Jennifer Weiner’s earlier works. If you like Weiner’s other books, such as Good in Bed and Little Earthquakes, you will like this book, too. If you did not like those other books or you do not like fiction about women’s reproductive capacities and relationships, then you won’t like this one.

The book got me thinking about the law surrounding the arrangement that brings the four protagonists together: gestational surrogacy. While the enforceability of the gestational surrogacy contract in the book is not really an issue in the book, I was intrigued by Weiner’s brief mention of surrogacy law in Pennsylvania, when India, the sympathetic “gold digger,” said:

I’d asked for a gestational surrogate who lived in Pennsylvania, the clinic’s state of choice, where the laws were clear. There’d be no legal wrangling over who the baby belonged with, whose name went on the birth certificate under ‘parents’ (pg. 189).

I decided to look into how “clear” the laws of Pennsylvania are on gestational surrogacy. There are different types of surrogacy arrangements: (1) Traditional surrogacy: the woman who is carrying the fetus is also genetically related to the fetus; the woman is inseminated with sperm supplied by either the intended father who will raise the resulting child(ren) or by a sperm donor; (2) Gestational surrogacy: the woman who is carrying the fetus is not genetically related to the fetus; and the ovum (egg) is supplied by the intended mother who will raise the resulting child(ren) or by a known or unknown egg donor, and the sperm is supplied by either the intended father or a sperm donor.

Pennsylvania’s case law provides some guidance about surrogacy/gestational carrier arrangements, but the law is far from clear. Unlike some states, Pennsylvania has no statute regulating surrogacy contracts. These matters have been left up to the courts to decide on a case-by-case basis with little precedent to follow.

The major case is J.F. v. D.B., 2006 Pa Super 90, a Superior Court case that the Pennsylvania Supreme Court declined to review. The case stems from a gestational surrogacy contract between the intended parents (an Ohio couple; the father supplied the sperm), an egg donor (a single woman in Texas) and a gestational carrier (a married woman in Pennsylvania who had no biological relationship to the babies), who received compensation from the intended parents as part of a written agreement brokered by a surrogacy company. The woman carrying the triplets that resulted from this arrangement turned out to be the gestational carrier from hell: she stopped letting the intended parents attend doctor’s appointments, she told the intended mother to stop calling her, she scheduled a c-section and did not tell the intended parents until the day of the birth so that they could not be there, and she took the babies home from the hospital and asserted full custodial rights while refusing to let the intended parents see the children. The trial court gave the gestational carrier custody (saying she was the “legal mother”), made the biological father (the intended father) pay child support, and terminated the parental rights of the egg donor (who somehow got dragged into all of this even though she didn’t intend to assert parental rights).

The Superior Court did not agree with the trial court, and so it granted the biological/intended father full custody of the children. The Superior Court found that the gestational carrier who was not biologically related to the children did not have standing to seek custody.

That seems clear enough, except that this case narrowly focuses only on these specific facts and the Superior Court left many loose ends, including by: (1) not addressing whether gestational carrier contracts are enforceable because the gestational carrier in this case never made that argument; (2) not addressing the rights of the intended mother who did not have a biological connection to the children. The case seems to stand for the proposition that parental rights stem from biology, and so the biological father and the egg donor trump everyone else.

Other states, like New Jersey, prize the parental bond over the genetic relationship, thus giving gestational carriers more rights than they have in Pennsylvania,while making such contracts riskier for intended parents. In re Baby M., 537 A.2d 1227 (N.J. 1988) (finding the surrogate to be the mother of the child and holding contracts for traditional surrogacy are void as a matter of public policy); A.G.R. v. D.R.H. & S.H., No. FD-09-1838-07 (N.J. Super. Ct. Ch. Div., Dec. 23, 2009) (applying Baby M. to a gestational surrogacy arrangement). While the gestational carrier’s behavior in the Pennsylvania case was troubling for many reasons, a more charitable view of her behavior recognizes that some (perhaps many or all) pregnant women develop a bond with the babies they carry and deliver even if they are not genetically related to them. Certainly, parents who have adopted children are no different in their love for and attachment to their children than are parents who are biologically related to their children.

As for India’s belief that “There’d be no legal wrangling over… whose name went on the birth certificate under ‘parents’,” that isn’t necessarily true in all cases either. The Pennsylvania Department of Health has an Assisted Conception Birth Registration Process to list the intended parents’ names on the birth certificate, but whether a judge will issue the order required by this process is up to the judge’s discretion.

Surrogacy arrangements raise tough issues if any party involved — the intended parents, the gestational carrier, egg donor, or sperm donor -— contests the agreement, possibly resulting in years of litigation in Pennsylvania’s courts. No one wins when that happens, most especially the children who are born as a result of these arrangements. The children deserve clearer law in this area, preferably through carefully crafted legislation.